351 P.3d 801
Or. Ct. App.2015Background
- Defendant led a 30–40 person protest that moved into Main Street during heavy rain and slick, low-visibility conditions; protesters spilled into the middle lane, impeding traffic.
- Officer Perrone repeatedly ordered defendant to move the group off the street onto the sidewalk; defendant refused and used profanity; Perrone threatened arrest but did not immediately arrest to avoid escalating danger.
- The City of Ashland had a permit scheme for marches (advance application, fees, insurance, signatures); defendant did not obtain a permit, believing it unconstitutional and too costly.
- Perrone testified he would have escorted the protest rather than ordering it off the street if the group had a permit; the trial court later held the permit scheme unconstitutional and instructed the jury accordingly.
- Defendant was convicted of interfering with a peace officer (refusing to obey a lawful order) and acquitted of disorderly conduct; he moved for judgment of acquittal arguing the order was unlawful because of the invalid permit scheme and Perrone’s testimony.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Perrone’s order to move off the street was a “lawful order” under ORS 162.247(1)(b) | The order was lawful because a factfinder could infer it was issued for safety concerns independent of the permit scheme | The order was unlawful because Perrone said he would not have issued it had the protest been permitted, and the permit scheme was declared unconstitutional | The order was lawful on its face; a rational factfinder could find it authorized by substantive law due to officer safety concerns, so MJOA properly denied |
Key Cases Cited
- State v. Hall, 327 Or. 568 (standard of review for sufficiency of the evidence)
- State v. Ausmus, 336 Or. 493 (definition of “lawful order” as authorized by, and not contrary to, substantive law)
- State v. Illig-Renn, 341 Or. 228 ("lawful order" tied to external substantive law, not officer discretion)
- State v. Neill, 216 Or. App. 499 (orders made for officer safety lawful on their face despite other legal defects)
- State v. Rodinsky, 60 Or. App. 193 (lawfulness of order judged independently of initial police-citizen confrontation)
- State v. Bistrika, 261 Or. App. 710 (officer-safety concerns can render orders reasonable and lawful)